Judge says EPA Must Consult with NMFS Over Pesticides

by Bill Rudolph
NW Fishletter, July 19, 2002

A federal judge in Seattle ruled earlier this month that the Environmental Protection Agency must consult with NMFS over the potential effects of certain pesticides on ESA-listed salmonids in the Northwest. The July 2 ruling came down after a long consultation collapsed between EPA and plaintiffs, led by the Washington Toxics Coalition.

Earthjustice lawyer Patti Goldman, who represented the Washington coalition, the NW Coalition for Alternatives, and the Pacific Coast Federation of Fishermen's Association, called it a sweeping victory for people and salmon in the Northwest "EPA had flouted its legal obligation to stop harmful pesticide uses and the court put an end to that disregard of the law," Goldman said in an EJ press release.

Seattle federal court judge John Coughenour granted part of the plaintiffs' motion for summary judgment agreeing with their claim that the EPA had failed to consult with NMFS about effects of registered pesticides on listed fish and their habitat. But he denied their claim that EPA had violated a section of the ESA that called for the agency to promote the conservation of threatened and endangered salmonids.

The judge approved a schedule for the federal agency to consult with NMFS over the effects of 55 active ingredients of pesticides, because plaintiffs "have provided some evidence of potential harm to the species of their interest, salmon." But he dismissed environmentalists' claims with respect to another 898 unidentified ingredients, saying they "submit absolutely no evidence in any form showing that EPA's respective actions are fairly traceable to an actual or threatened injury to threatened and endangered salmonids."

The plaintiffs cited evidence that included a 1999 report on "Salmon Declines and Pesticides." The report cited a USGS program that had examined 84 pesticides in the Columbia River Plateau and detected 45 of them. Five were found in high enough concentrations to be categorized as "exceeding aquatic life criteria," while noting that only 18 of the detected pesticides had any available aquatic life criteria in the first place.

Croplife America, an industry association which intervened on behalf of EPA, said that USGS advanced monitoring techniques have found pesticides at the "extreme limits of detection" in streams throughout the year in all major land-use settings.

"In most agricultural areas," Croplife says, "pesticides are detected as seasonal pulses lasting from a few days to several months during and following high-use periods...Overall, detections remain quite low although concerns have been raised about potential impacts on sensitive aquatic life exposed to such low levels when several different products are detected."

The industry says studies show that some aquatic creatures such as mosquito larvae and other insects can be thousands of times more sensitive to certain pesticide contaminants than fish or crayfish, snails or mammals, and they point out that such tiny "indicator" species used to determine overall health of rivers may lead to over-protective regulations unless site-specific conditions are taken into account.

NMFS scientists have investigated the effects of small levels of diazinon on salmon (one part per billion) and found the pesticide can disrupt the fishes' sense of smell. Diazinon is one of the pesticides found throughout the region. The compound has been used in lawn care products for over 40 years.

"Nominal exposure concentrations (0.1, 1.0, and 10.0 µg·L-1) were chosen to emulate diazinon pulses in the natural environment," says the study abstract in the Canadian Journal of Fisheries and Aquatic Sciences. "In the antipredator study, diazinon had no effect on swimming behavior or visually guided food capture. However, the pesticide significantly inhibited olfactory-mediated alarm responses at concentrations as low as 1.0 µg·L-1. Similarly, homing behavior was impaired at 10.0 µg·L-1."

The industry website says over 99 percent of the monitored concentrations in Northwest waters were less than the sub-lethal levels (10 and 1 ppb) in the NMFS study. EPA has already begun to phase out diazinon use in the US, mainly over concern to children's' health. An industry spokesman said the 1999 report used by environmentalists is out of date because EPA has upgraded use restrictions on many pesticides since then.

The federal agency has already proposed a consent decree in another case about pesticides and the ESA. In a California-based lawsuit filed by environmentalists, all parties began court-ordered mediation in March 2001 that has resulted in a proposed agreement that calls for EPA to consult with the USFWS over potential effects of pesticides with eight certain active ingredients on endangered or threatened plants in California forests. The proposal also calls for EPA to consult with NMFS on potential effects of certain pesticides used in forest operations on endangered or threatened salmonids.